Dienstag, 12. Juli 2016

Does Karlsruhe say silently „yes“ to thermonuclear war ?

Constitutional
judges remain silent on Syria deployment of the Bundeswehr, which is
unconstitutional and incompatible with international law, and deny
the German population any protection against the danger of world war
and against the jihadist „blitzkrieg“, which has been
prognosticated for Germany and Europe for 2016

Unser
Politikblog | 12.07.2016

After
the press conference of the 12.06.2016 in Dresden, the plaintiff now
addresses herself to the public also in writing.

At
the 17.03.2016, the civil and human rights activist Sarah Luzia
Hassel-Reusing has filed a Constitutional complaint (file number 2
BvR 576/16) against the resolution by the Bundestag of the 03.12.2015
(file number 18/6866) on the Syria deployment of the Bundeswehr. The
seven applications of the complaint have demanded to prohibit the
German Syria deployment, to impose on the members of the Bundestag
(as far as foreign and safety policy are concerned) appropriate
criteria for the self investigation of their conscience prescribed in
art. 38 par. 1 s. 2 Basic Law, to biometrically register all
immigrants, who have come to Germany since 2015, to appropriately
limit the power of think tanks over Germany in the area of foreign
and safety policy (in order to protect the Basic Law and the UN
Charter), to restore the ability of Germany to defend its whole
territory against the danger of a jihadist attack, to completely
limit the prescriptions of the TEU on safety policy with an
interpretation in conformity with the Basic Law and with the UN
Charter, and to oblige, for that purpose, the Federal Government to
get an advisory opinion by the ICJ, or to state, according to art 53
VCLT, the voidness of the TEU because of incompatibility with the UN
Charter.

The
Constitutional Court has made provisions in the Lisbon judgement to
limit the Common Foreign and Safety Policy (CFSP) of the EU, which
have made possible the enactment of the Lisbon Treaty without the TEU
getting void. Those provisions have been disregarded by the EU
Council of Ministers (incl. by the German Defence Minister) at the
16./17.11.2015 (file number 14120/15) and by the Bundestag at the
03.12.2015 (file number 18/6866).

The
complaint has been based on the human dignity (art. 1 par. 1 Basic
Law) in connection with the peace principle (art. 1 par. 2 Basic
Law), on the basic right to vote (art. 38 Basic Law), on the basic
rights to life, to physical integrity, and to freedom (art. 2 Basic
Law), on the function reservation (art. 33 par. 4 Basic Law), and on
the universal human rights to security (art. 9 ICCPR) and to health
(art. 12 CESCR).

At
the 12.04.2016, the 3rd
Chamber (Constitutional judges Prof. Dr. Huber, Müller, and Dr.
Maidowski) of the 2nd
Senate of the Constitutional Court have unanimously concluded not to
admit the Constitutional complaint and referred for that to art. 93a
and 93b BVerfGG. An explanation for the non-admittance has not been
given. The non-admittance has, according to the post stamp, been sent
at the 14.04.2016, and it has reached the post box in the morning of
the 15.04.2016.

According
to art. 93d par. 1 s. 3 BVerfGG, a resolution on a non-admittance
does not have to be explained. Art. 93a BVerfGG determines as a
„must“ prescription, depending on which conditions a
Constitutional complaint has to be admitted, namely if there is a
personal affectedness regarding basic rights, or if the decisive
legal questions are furthering the Constitutional jurisdiction. If a
Constitutional complaint fulfills these conditions, it has to be
admitted; if it does not fulfill them, it may not be admitted.

What
the own, current, and immediate affectedness regarding basic rights,
as a precondition of the admittance of a Constitutional complaint,
means, has been explained in no. 78 of the aviation safety law
judgement of the 15.02.2006 (file number
1 BvR 357/05). The condition of the own and current affectedness is
basically fulfilled, if the plaintiff explains, that she, with a
certain probability, is affected in her basic rights by the measures
based on the tackled prescriptions.
Immediate affectedness means, that the prescriptions change the legal
position of the plaintiff already before any act of their
implementation. This condition is also fulfilled, if the plaintiff
cannot or cannot reasonably complain against an act of its
implementation. According to these standards, the personal
affectedness regarding the aviation safety law has been confirmed.
The then plaintiffs had credibly explained, that they often use civil
air planes for private and professional reasons.

The
fundamental importance for Constitutional law means the furthering of
the Constitutional jurisdiction, i. e., which of the invoked decisive
legal questions have not yet been decided by the Constitutional
Court, or which have to be investigated again because of a changed
situation or because of new legal arguments.

So
a non-admittance, even if it is issued without any explanation,
always implies the silent allegation, that none of the invoked
affectednesses regarding basic rights and human rights, or none of
the invoked decisive legal questions for the furthering of
Constitutional jurisdiction were given.

So
the non-admittance of the 12.04.2016 implies the silent allegation,
that the increase of the danger of escalation to a thermonuclear war
because of the incomplete coordination with the countries
(particularly with Syria and Russia), which are militarily involved
in Syria, and because of the carde blanche enablement of the
inclusion of German soldiers in joint staffs included in the
resolution of the 03.12.2015,
even though the painful and defacing health damages connected to a
thermonuclear war, would neither mean an affectedness of the
plaintiff regarding the human dignity (art. 1 par. 1 Basic Law) in
connection with the peace principle (art. 1 par. 2 Basic Law), nor
regarding the basic rights to life and to physical integrity (art. 2
par. 2 Basic Law), nor regarding the human right to health (art. 12
CESCR).

The
Constitutional complaint, in contrast to that, has explained, that
Isis and most probably also Al Qaida, on the basis of their
interpretation of the Islamic Revelation, actively strive to provoke,
still before 2020, a world war beginning close to the Syrian town
Dabiq, and that they do this particularly by involving the armies of
as many countries as possible into the Syria conflict, so that they
get into fighting against each other. In addition to that, it has
been shown, that the Syria conflict has, at least two times, already
nearly led to world war. At the 31.08.2013, the information
regarding the warnings by Russia and by China have reached His
Excellency, US President Barack Obama, just in time, so that the air
attack on Syria scheduled for the 01. or 02.09.2013, as an answer to
the chemical weapon deployment in Ghouta (Syria), which had been
hastily and incorrectly attributed to the Syrian government, has been
cancelled early enough. In the end of 2015, the downing by Turkey of
a Russian jet, which had violated the Turkish airspace only for a
short time, has not escalated to world war only because of Russian
modesty.

In
addition to that, the non-admittance implies the silent allegation,
that the plaintiff was affected by the following points neither
regarding the human dignity (art.
1 par. 1 Basic Law) in connection with the peace principle (art. 1
par. 2 Basic Law) nor because of ultra-vires (excession of
competences and so cutting of the democratical chain of legitimation
from the voters to the members of parliament, and further to the
government, and to international organizations) regarding the basic
right to vote (art. 38 Basic Law):

-the
consent by the German government to the French application to state
the case of mutual defence according to art. 42 par. 7 TEU, even
though the mutual defence clause still had not been made valid
according to the procedure prescribed in art. 42 par. 2 subpar. 1 TEU
(incl. need for consent in the Bundestag and for ratification, no.
255 + 389 + 390 Lisbon judgement),
and so the EU, as a result of that, is still no system of mutual
collective security according to art. 24 par. 2 Basic Law (no. 254 +
390 Lisbon judgement)

-the
consent by the Federal Government to the French application to state
the case of mutual defence according to art. 42 par. 7 TEU, without
prior requesting the constitutive consent of the Bundestag, and so
violating also the parliamentary reservation according to art. 115a
Basic Law (no. 254+255 +381+382+387+388 Lisbon judgement)

-the
resolution by the Bundestag of the 03.12.2015 on the Syria deployment
of German forces, even though the resolution of the 16./17.11.2015 on
the case of mutual defence is void already because of inner
contradictions

-the
consent by the Federal Government on the French application to state
the case of mutual defence according to art. 42 par. 7 TEU, even
though there is, without an „armed attack“, neither a case of
mutual defence according to art. 42 par. 7 TEU nor of self defence
according to art. 51 UN Charter, even though there is no resolution
according to art. 42 UN Charter for a military intervention, and no
(regarding the prohibitions of aggressive war according to art. 2
par. 4 UN Charter and to art. 26 Basic Law necessary) consent by the
Syrian government

-the
resolution by the Bundestag of the 03.12.2015 on the Syria deployment
of German forces, even though there is, without an „armed attack“,
neither a case of mutual defence according to art. 42 par. 7 TEU nor
of self defence according to art. 51 UN Charter, even though there is
no resolution according to art. 42 UN Charter for a military
intervention, and no (regarding the prohibitions of aggressive war
according to art. 2 par. 4 UN Charter and to art. 26 Basic Law
necessary) consent by the Syrian government

-the
resolution by the Bundestag of the 03.12.2015 on the Syria deployment
of German forces, even though it takes place outside any system of
mutual collective defence (art. 24 par. 2 TEU), to which Germany
belongs, since the EU, the internationale alliance in the fight
against Isis, and single other countries do not fulfill the
conditions of art. 24 par. 2 Basic Law (no. 254+390 Lisbon judgement)

-the
resolution by the Bundestag of the 03.12.2015 on the Syria deployment
of German forces, because it does not have any sufficient material
legal basis in the Basic Law and so violates art. 87a par. 2 Basic
Law.

The
size of the escalation risks is shown also by the protest published
at the 15.06.2016 by the Syrian Foreign Ministry regarding the
deployment of American, German, and French troops in Syria without
any coordination with the Syrian government, which is disputed by the
German Federal Government (Sana article „Syria condemns presence of
French and German special forces in Ain Al-Arab and Manbij“ of the
15.06.2016, RT Deutsch article „Deutsche Spezialkräfte im
Kampfeinsatz in Syrien? Damaskus erzürnt, Berlin dementiert“ of
the 16.06.2016). It seems, also in view of the joint staffs with
other countries, carde blanche enabled in the Syria resolution by the
Bundestag (file number 18/6866) of the 03.12.2015, completely
intransparent, if the German government is still completely informed,
under whose control the German soldiers are deployed in connection
with Syria.

The
non-admittance, in addition to that, silently implies, that the
expression in the basic right to vote, that the members of the
parliament are subjugated only under their own conscience (art. 38
par. 1 s. 2 Basic Law) either did not contain the claim invoked by
the plaintiff, of her as a voter, that the members of the Bundestag
have, at least in so sensible areas like foreign and safety policy,
to do a self-examination of their conscience, i. e. to apply their
conscience. Or it implies the silent allegation, that this right was
not violated by the resolution by the Bundestag of the 03.12.2015,
even though the members of the parliament have taken themselves only
2 days to decide on the combat deployment; had the members of the
Bundestag taken themselves the time needed for a self-examination of
their conscience, then they would have noticed the world war risks in
connection with the deployment as well as the violations of art. 115a
Basic Law (because of missing constitutive consent to the the
statement of the EU case of mutual defence), and that the EU clause
of mutual defence (art. 42 par. 7 TEU) had not yet been presented to
the members of the Bundestag for their consent according to the
provisions of art. 42 par. 2 subpar. 1 TEU, in order to make it
applicable at all.

In
addition to that, the non-admittance implies the silent allegation,
that the plaintiff was not affected in her basic right to vote (art.
38 Basic Law) by the preforming of the resolution of the 03.12.2015
on the Syria deployment of the Bundeswehr by private actors in the
way of the playing down of the Muslim Brotherhood (which according to
Foreign Affairs strives for a global caliphate, and according to
Voltairenet has created the ideology of Al Qaida), of disattracting
from the overwhelming composition of the Syrian „rebels“ of
foreign jihadists (95% according to Asia Times), of disattracting
from the question of the legality of a „regime change“ in Syria,
and of the classification of Syria as a „disturber state“.

The
non-admittance, furthermore, implies either the silent allegation,
that Germany has not been put more into the focus of Isis because of
the direct military involvement of the Bundeswehr, than it had been
before the resolution of the 03.12.2015. Or that the plaintiff
nevertheless was affected neither regarding the human dignity (art. 1
par. 1 Basic Law) in connection with the peace principle (art. 1 par.
2 Basic Law) nor regarding the human right to security (art. 9 ICCPR)
by the missing biometrical registration of hundredthousands of people
having immigrated to Germany since 2015 and by the resulting missing
comparison particularly with the card index available to Great
Britain of 22,000 presumed Isis members, and with the 9,000 stolen
and falsified passport identities detected by Macedonia along the
main refugee routes, and by the missing ability of Germany to defend
its whole territory against the jihadist „blitzkrieg“
prognosticated for 2016 in Germany and Europe.

Enlightening
on the issue non-admittance is also a dissenting opinion by the then
Constitutional judge Prof. Dr. Lübbe-Wolff to the decision by the
Constitutional Court of the 14.01.2014 regarding OMT, in which she
exposes, that the Constitutional Court applies, besides legal
foundations further „techniques to avoid overstraining judicial
power“ (no. 4) like particularly „the
choice between admissibility criteria and reduced intensity of review
as instruments of judicial restraint“.

She
has, in no. 9 of her then dissenting opinion, argued in favour of the
use of non-admittance criteria without any explicit legal basis in
art. 93a BVerfGG, as follows:

„The
more judicial restraint
is required, the more preferable is it to exercise such restraint by
way of refusal to go into the merits (political question doctrine,
criteria of admissibility) rather than by way of applying restrained
standards of review (recognition of margins of appreciation,
substantive obviousness criteria and the like). That is because the
former path is the path of greater restraint. Dealing with the
substance of the case is altogether avoided here, while the mere
application of restrained standards of review will typically result
in some kind of benediction, although reduced in scope, of the object
of judicial review.”.“

If
one follows the words by Mrs. Prof. Dr. Lübbe-Wolff, then one has
not gone into the merits at the 12.04.2016, and then Germany's
participation in the increasing of the danger of world war and the
omission of the Federal Government to appropriately protect the
population against the jihadist „blitzkrieg“ prognosticated for
2016 also for Germany, have not been actively been given
„benediction“.

But
that is cold consolation for the meanwhile over 7,391,068,000 human
beings, which now, in comparison with a situation of orderly
treatment, will, with a significant higher probability, be affected
by a nuclear war, which including radiation syndrome, cancer, and
collapse of the ecosystems, would survive noone. Or for the relatives
of the victims of jihadist attacks. The „gentlemen“ in Karlsruhe
should be obliged to explain to every single of them, why they,
hidden behind the anti-transparency-clause art. 93d par. 1 s. 3
BVerfGG, additionally to the conditions prescribed by law (own,
current, and immediate affectedness and furthering of the
Constitutional jurisdiction) for the admittance of a Constitutional
complaint, simply invent further ones or even reject the admittance
of valid Constitutional complaints without any application of the
material prescriptions for that.

To
the imaginarily threatening functional „overstraining of judicial
power“ is de facto contributing particularly art. 3 par. 4 s. 1
BVerfGG, according to which the „professional occupation“ „of a
teacher of law at a German university“ is compatible „with the
occupation as a judge“. Art. 3 par. 4 s. 2 BVerfGG prescribes „The
occupation as as judge is preeminent to the occupation as a teacher
at a university“, but that can, as well as art. 93a BVerfGG, de
facto be levered out. Because the anti-transparency-clause art. 93d
par. 1 s. 3 BVerfGG has, since 1993, created an enduring temptation,
to illegally reject valid, but labour-intensive (which would reduce
the time left to the judges for their extra occupations) or in other
way unconfortable Constitutional complaints, without giving any
explanations for that.

We
do not have a „law bankruptcy“ in Germany, but a, in comparison
to the total population, small amount of concrete people at some key
positions, which are not able or not willing to fulfill their
Constitutional tasks.

In
1969, the legislator has, as a counterbalance to the „emergency
laws“, very consciously secured the possibility of everyone to file
a Constitutional complaint in art. 93 no. 4a Basic Law.

Constitutional
judge Prof. Dr. Huber has, in addition to that, advertised in the
interview „Keine europäische Wirtschaftsregierung ohne Änderung
des Grundgesetzes“ („no European economical government without
change of the Basic Law“) of the Süddeutsche Zeitung of the
19.09.2011, on the occasion of the Fiscal Compact, for the idea, that
the German people should,for purposes of power transfer towards the
EU, consent in a referendum into the opening of the eternity
guarantee (art. 79 par. 3 Basic Law), that means to sacrifice, in
relation to the EU „economic government“, any protection by basic
rights and structure principles. He has called his idea a
„revolution“ - that term perfectly fits, because the insertion of
the eternity guarantee (art. 79 par. 3) into the Basic Law has been
achieved by Dr. Thomas Dehler (FDP) in the Parliamentarian Council
within the works of the creation of the Basic Law with the argument,
that the eternity guarantee would wrench „the mask of legality“
from a revolutionary.

From
such an active revolutionary acting against the order of the Basic
Law, it may seem coherent, to deny the application of basic rights
like human dignity (art. 1 par. 1 Basic Law) and life (art. 2 par. 2
Basic Law) even in the case of an illegal deployment of the
Bundeswehr, which contributes to the increase of the danger of a
world war. More and more the question arises, whom such a
„revolution“ shall benefit. Hardly the EU,
for the resolution on the case of mutual defence
(file number 14120/15) of the 16./17.11.2015 by the EU
Council of Ministers, which the resolution by the Bundestag (file
number 18/6866) of the 03.12.2015 refers to, is an application of
art. 42 TEU, which is incompatible with the UN Charter, so that the
question of the voidness of the TEU according to art. 53 VCLT for
incompatibility with the UN Charter, which belongs to the „ius
cogens“, arises. Had the Constitutional Court treated 2 BvR 576/16
orderly, then it would have set the necessary limits to the EU
military deployment according to the UN Charter and so would have
removed the risk to the existence of the EU. The non-admittance, in
contrast to that, lets the problem become bigger and bigger, since it
can now be brought at any opportunity before the Constitutional
Courts of EU member states, or be brought by states before the ICJ,
if the EU does legally still exist at all. That can be put on the
table again, e. g., on the occasions of EU military deployments and
of EU trade treaties. We have the same situation, because of the
behaviour of the same senate, since the 01.05.2013 for the TFEU, and
one has seemingly, despite the Ukraine crisis, learned nothing from
that. The existence of the EU relies on art. 1 TEU, so that the
establishment of the voidness of the TEU would be like 28 Brexits at
one time.